Opinion

In search of the Second Amendment

By Derek Boothby

Posted:
02/14/2013 10:45:41 AM EST

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

In the current brouhaha over gun control, the origins and development of the Second Amendment are often lost in the smoke of charge and countercharge over the right to bear arms. The following consideration is not presented in order to take one side or another but simply to remind ourselves from whence the language came.

When the Federal Convention met in May 1787 to revise the original Articles of Confederation, it soon became clear that an entirely new document had to be created to describe the frame of government.

The outcome of debate was the Constitution signed on behalf of all 13 states on Sept. 7, 1787. But ratification by the states had not been an easy business. Among many doubts and concerns were deep suspicion of too much authority being left to a central (federal) government, the need to achieve some form of security, the knotty question of individual rights as opposed to collective rights, and the understandable wish to avoid repetition of the perceived excesses of British colonial rule in the violation of civil rights.

Several state conventions had ratified the Constitution on the understanding that there would be amendments spelling out civil rights, and thus a package of 10 amendments was hammered out over the subsequent four years and approved in 1791.

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Known as the Bill of Rights they reflected the concerns of the age, such as freedom of religion and speech, rights to fair trial, rights in criminal and civil cases and rights of the people to be secure in their persons and houses against unreasonable searches and seizures. The assertion of some of these rights arose from violations committed by British colonial soldiers and the roots of others lay in long standing principles and practices inherited from English common law.

Distaste for the existence of a standing army was one of the latter. In England in medieval times, there was no standing army available to the king. In times of war each serf or villain was required to present himself with his weapon, be it a pike, halberd or just a dagger, to his master when called for military service. Thus an armed militia existed only as need arose. One of the unhappinesses in the 1640s that led to civil war in England and the beheading of King Charles I in 1649 was his raising of an army in 1642 solely under his royal authority rather than a militia under the authority of Parliament. In the American colonies of the 1770s, the overbearing actions by soldiers of King George III were seen as part of the tyranny of government.

It was to avoid the possibility of tyranny of central government that Article 1, Section 8, contained the following powers of Congress:
To provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel invasions; To provide for organizing, arming and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The existence of these provisions for the militia contained in the main text of the Constitution is often overlooked but it is in reference to them that the opening phrase of the Second Amendment was aimed in 1791. The Anti-Federalists of 1791 made sure that the militia would be well regulated and kept out of the hands of the central government by stipulating that officers would be appointed and training would be done by the States, not by any federal government.

Today, of course, in place of a militia in each State we have the National Guard and the State police.

This being the case, the primary argument for the people to bear arms as set out in the Second Amendment would seem to be no longer relevant.

But this still leaves extant the time-honored expectation that the people may bear arms. This revolves around the issue of whether the right to bear arms is an individual right or a collective right.

If James Madison, in drafting the amendments, had proposed language on the right to bear arms to amend Article 1, Section 8, it would have indicated that he viewed it as a State's (that is, collective) right.

Instead it was included among the other proposed amendments that described the private rights of individuals. Moreover, its placement as the second of the ten amendments in the Bill of Rights would seem to indicate that it was accorded a higher importance than the rights that are covered by the rest of the amendments.

Madison's original draft language contained a clause to the effect that "no conscientious objector shall be compelled to render military service in person," and this, too, indicated that he considered the whole paragraph in the context of the rights of an individual.

This language was changed in committee to read "but no person religiously scrupled shall be compelled to bear arms." The Senate then changed the draft language yet again, rejecting the proposal to add the words "for the common defense" as part of the phrase "the right of the people to keep and bear arms (for the common defense) shall not be infringed. Thus, the language of the Second Amendment as finally adopted was:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The American revolutionaries were well aware of the lessons to taken from English history: namely, standing armies in the hands of the monarch threatened individual liberty, and the best check on such a circumstance was an armed citizenry. In turn, this meant that the right to bear arms was necessarily an individual right that could not be abrogated by the prevailing rulers.

This position has been reaffirmed in more recent years by the Supreme Court on several occasions, as in 2008 Heller v. District of Columbia when the Court's decision by a vote of five to four included the following judgments:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The bottom line is that today the individual right to bear arms is long standing and rock solid, but the purpose as given in the Second Amendment for their potential use is totally out of date.

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